Citation Nr: 0403852
Decision Date: 02/10/04 Archive Date: 02/23/04
DOCKET NO. 03-15 825 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an increased evaluation for lumbar spine
herniated disc with arthritis, status post laminectomy,
currently evaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: American Legion
ATTORNEY FOR THE BOARD
C. Moore, Associate Counsel
INTRODUCTION
The veteran had active service from October 1950 to September
1952.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a January 2002 rating decision of the Regional
Office (RO) that increased the rating for lumbar herniated
disc with degenerative joint disease to 40 percent disabling.
In this regard, the Board construes the veteran's statement
received in August 2002 as sufficient to constitute a notice
of disagreement with that action.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The rating decision in January 2002 additionally confirmed
and continued a noncompensable rating for hemorrhoids. The
veteran also provided notice of disagreement with that
determination in August 2002. However, the veteran has not
been issued a statement of the case as to that issue to date.
Where a statement of the case has not been provided following
the timely filing of a notice of disagreement, a remand, not
a referral is required by the Board. Manlincon v. West, 12
Vet. App. 238 (1999).
The regulations pertaining to the evaluation of disabilities
of the spine were revised effective September 26, 2003. VA's
Schedule for Rating Disabilities, 68 Fed. Reg. 51454 - 51458
(Aug. 27, 2003) (to be codified as amended at 38 C.F.R. §
4.71a, Diagnostic Codes 5235 to 5243). The RO must be
afforded the opportunity to adjudicate the case with
consideration of the revised schedular criteria prior to
appellate consideration.
Under the circumstances of this case, the Board finds that
additional development of the record is required.
Accordingly, the case is REMANDED to the RO for action as
follows:
1. The RO should readjudicate the lumbar
spine increased rating issue on appeal
with consideration of the revised
criteria for rating disabilities of the
spine effective September 26, 2003. 68
Fed. Reg. 51454 - 51458 (Aug. 27, 2003)
(to be codified as amended at 38 C.F.R. §
4.71a, Diagnostic Codes 5235 to 5243).
If additional orthopedic and neurologic
examinations are deemed warranted, such
should be scheduled by the RO. The
claims folder must be made available to
the examiner(s) prior to examination of
the veteran.
2. Thereafter, if the lumbar spine
increased rating benefit sought on appeal
remains denied, the RO should furnish the
veteran and his representative with a
supplemental statement of the case that
includes all applicable legal precedent
and pertinent Diagnostic Codes for rating
the service-connected lumbar spine
disability at issue, including effective
from September 26, 2003. The veteran
should be afforded a reasonable period of
time in which to respond. Thereafter,
the case should be returned to the Board,
as warranted.
3. The RO should issue a statement of
the case in response to the August 2002
notice of disagreement with the January
2002 rating decision which confirmed and
continued a noncompensable rating for
service-connected hemorrhoids. The
veteran and his representative should be
afforded the requisite period to respond.
Thereafter, the case should be returned
to the Board, as warranted.
The appellant has the right to submit additional evidence and
argument on the matter(s) the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).